A defense attorney wants a change of venue in the embezzlement case of a former BYU employee, contending that Utah County residents who pay tithing to The Church of Jesus Christ of Latter-day Saints are unfit to serve on a jury in which the Mormon school is the alleged victim.
Salt Lake attorney Larry Keller made that argument Monday in 4th District Court as part of a motion to change the venue of a currently unscheduled trial for John Shepard Davis.
Keller wants the trial moved from Utah County, where nearly 90 percent of residents are Mormon, to either Salt Lake -- which is 64 percent Mormon -- or Summit County -- which is 36 percent Mormon.
Davis, a church member, is charged with seven counts of theft for allegedly embezzling $306,000 from BYU. He worked at BYU for 10 years and was in student financial services when placed on administrative leave May 23, 2001. He was fired on July 19, 2001.
"The danger is that an LDS person is likely to conclude that they serve to lose some small amount (of donated tithing)," Keller said of a case where BYU is the victim.
Millions of dollars in LDS tithing funds help pay to educate BYU's 30,000 students.
Keller also said LDS jurors could view the defendant as someone who betrayed their religion instead of just someone who committed a crime.
Since a significant amount of tithing is directed to BYU, Keller said tithepayers share an association with the alleged victim in the Davis case.
Utah County Deputy Attorney David Wayment said Keller's arguments are unconstitutional.
"He wants to keep people off the jury for nothing other than grounds that they are tithepaying members of the LDS Church," Wayment said. "The Utah Constitution prohibits that. He's setting up a religious test."
Keller could find no evidence that his argument had been raised before for a Utah County case involving BYU.
Wayment said that is an important point.
"If there's a danger, it's that I wouldn't want the court to set a precedent where every time BYU is the victim of a crime we have to go out of the county to hold a trial."
Judge Steven Hansen said he hoped to issue a ruling soon.